UCLA School of Law

In “How Facts Make Law” (Greenberg 2004), I argue that non-normative contingent facts are not sufficient to determine the content of the law. In the present paper, I take up a challenge raised by Enrique Villanueva (2005). He suggests that, to put it very briefly, descriptive facts can be reasons. Therefore, even if the content of the law depends on reasons, it does not follow that law practices cannot themselves determine the content of the law.

Villanueva proposes a value-neutral criterion – textualism. In other words, he suggests that the descriptive facts about the meaning of legal texts are themselves reasons that determine the contribution of law practices to the content of the law. This suggestion depends on too shallow a conception of the requirement of reasons. For the law to be rationally determined, it is not enough that there be some value-neutral criterion that specifies that law practices have certain consequences for the content of the law. There have to be reasons that explain why that criterion, as opposed to all others, is the legally correct one – the one that, in the relevant legal system, determines the contribution of law practices to the content of the law. Normative facts are the best candidates for such reasons. And, in fact, Villanueva’s textualist criterion derives its appeal from normative facts.

Reasons play a central role in the ontology of law. The determinants of the content of the law, which include law-determining practices such as statutes and judicial decisions, influence the content of the law in a systematic way. But their influence on the content of the law cannot be brute: there have to be reasons that explain why the determinants have the particular significance that they have. These reasons are part of what makes the determinants have that significance. Hence, the reasons are part of what makes the content of the law what it is. Descriptive facts cannot themselves provide the necessary reasons: given any descriptive fact that is a candidate reason, its significance itself depends on reasons – and, unlike normative facts, descriptive facts cannot determine their own significance. Descriptive facts therefore cannot alone determine the content of the law.